Mom needs help with VA Disability Apportionment Questions

I am a mother of a 9 year old son whose father is 100% disabled and collecting benefits. I receive a VA $94 disability apportionment cheque from his 100%
disability cheque every month for his welfare.

Guys, my son's dad isn't safe to be around. I left because he was physically abusive to me. Five years later my son started asking about his dad, I
moved halfway across the country from my home so my ex and his son could be together. It didn't work out (he became violent toward our child) so now I live
in an apartment in the same city and haven't given my address to anyone, including my family back home because I don't want my son's dad knowing
where we live.

We have talked a few times since then, but my son's dad doesn't want anything to do with his son and has never given any money to help pay for his
expenses. Life for the two of us is hard; my son can't be in afternoon daycare or be enrolled in extracurricular activities because we are dependant on my
income solely.

I know a lot of you guys have been jacked by women and may be unwilling or skeptical about giving advice (please don't flame me). What I want to know is,
If I go to court and file custody and child support papers (which I haven't done, I have been giving the Ex ample time-years- to step up and be a dad),
will the court be able to order child support for us? I am told Yes, if the court orders it, and No, the court can't because disability isn't taxable.
Can someone please give me the facts on this?

(d) Provisions of the Child Support Enforcement Act, which provide that moneys payable by the Government to any individual are subject
to child support enforcement proceedings (42 U.S.C. § 659(a)), but which specifically exclude VA disability benefits, do not establish a congressional intent
to exempt such benefits from legal process. Section 659(a) was intended to create a limited waiver of sovereign immunity so that state courts could issue valid
orders directed against Government agencies attaching funds in their possession. Thus, although veterans' disability benefits may be exempt from attachment
while in the VA's hands, once they are delivered to the veteran, a state court can require that they be used to satisfy a child support order. P
P. 634-635.

The veteran in question was held in contempt for failing to pay and the contempt charge was upheld. So, yes, if he gets ordered to pay it he cannot say he
won't even though the VA won't take it. And since it is easy enough to determine that he is drawing it I would think the court would order him to
pay.

Slingshot,
Your issues sound very complicated. If your sons Father is 100% disabled, you and your son might qualify for a lot of other benefits, including but certainly
not limited to, social security benefits. States treat many of the issues you discuss differently. You might consider getting help(even if it is just advice)
from the state. If at all possible, you should seek the advice of an attorney. Above all, you have indicated a violent history in this situation and I will
guarentee that taking, what he will view as his money, will not make him happy. Please be careful and seek help with this, for your Sons sake!!

While the VA will not apportion compensation in divorce issues, they will do so in court ordered child
support cases.

Not unless there has been something more recent than the case I cited which clearly details they will not. sec 659 excludes VA benefits.

sec 659...Thus, although veterans' disability benefits may be exempt from attachment while in the VA's hands, once
they are delivered to the veteran, a state court can require that they be used to satisfy a child support order. P P.
634-635.

I am a mother of a 9 year old son whose father is 100% disabled and collecting benefits. I receive a VA $94 disability apportionment cheque from his 100%
disability cheque every month for his welfare.

Guys, my son's dad isn't safe to be around. I left because he was physically abusive to me. Five years later my son started asking about his dad, I
moved halfway across the country from my home so my ex and his son could be together. It didn't work out (he became violent toward our child) so now I
live in an apartment in the same city and haven't given my address to anyone, including my family back home because I don't want my son's dad
knowing where we live.

We have talked a few times since then, but my son's dad doesn't want anything to do with his son and has never given any money to help pay for his
expenses. Life for the two of us is hard; my son can't be in afternoon daycare or be enrolled in extracurricular activities because we are dependant on
my income solely.

I know a lot of you guys have been jacked by women and may be unwilling or skeptical about giving advice (please don't flame me). What I want to know is,
If I go to court and file custody and child support papers (which I haven't done, I have been giving the Ex ample time-years- to step up and be a dad),
will the court be able to order child support for us? I am told Yes, if the court orders it, and No, the court can't because disability isn't
taxable. Can someone please give me the facts on this?

Thank you ever so much.

Slingshot,

First, welcome to the VBN.

Next a couple issues come to mind.

First: you may want to file some type of restraining order against your (ex)spouse. Make sure it's know, that he's violent and abusive and those are
the reasons for your separation and will be the grounds for your divorce.

Then, find you a lawyer skilled in Divorce, Child Custody and VA benefits, or one who can find out the ins and outs for you.
Not too hard there. You may also be able to get some type of legal aid through your state. May want to check there.

Then file for custody of your child, file for a divorce and child support and from the sounds of it, you might even want to check into alimony.
Alimony is support money, paid to the spouse and depends on many circumstances.

Some of the possible factors that bear on the amount and duration of the support are:

If you are receiving compensation for a spouse or child, VA can apportion part of your compensation to that spouse or child. This is without regard for
whether or not there have been any court orders to that effect. For example, perhaps you are merely separate from your spouse. VA can apportion an amount to
her for her and any children of yours that are in her custody even if neither of you have sought a divorce.

When VA grants an apportionment, VA determines the amount that will be apportioned. In many cases it will be the amount that you are receiving for the
dependents in question; however, it may be more or it may be less. This is at VA's discretion. This is true even if there is a court order specifying how
much you must pay. Depending on whether or not the veteran is actually paying what the court has ordered him/her to pay, VA will take the court order into
consideration when deciding on an apportionment request; but VA is not bound in any way by that court order. This is between you, the judge, and your spouse.
VA stays out of your divorce.

VA's only objective in this is to make sure that your dependents are getting the benefit of the additional money that you are getting based on their
dependency. Having said that, if you have been ordered to pay support and you can prove that you are paying that support as ordered by the judge, in most
cases VA will deny the dependents request for an apportionment. VA would much rather you pay the money to them on your own than for VA to have to do it for
you.

U.S. Department of Health and Human Services
Administration for Children & Families
Office of Child Support Enforcement

Information Memorandum IM-98-03

DATE: September 25, 1998

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED
INDIVIDUALS.

SUBJECT: Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.

ATTACHMENT: VA Form 21-4138

BACKGROUND: Section 459 of the Social Security Act, as amended, provides for the garnishment of certain Federal payments for the
enforcement of child support and alimony obligations. However, benefits paid by the Department of Veterans Affairs (VA) are specifically excluded with one
exception [42 U.S.C. 659(h)(1)(B)(iii)]. The test to determine if a payment is subject to garnishment is whether the payment is remuneration for employment as
defined in section 459 [42 U.S.C. 659(a) and (h)]. While Federal salaries fit this test, and Title II Social Security Old-Age, Survivors, and Disability
Insurance benefits (OASDI) can be garnished (entitlement to these benefits is based on employee contributions into FICA), VA monetary benefits, entitlement to
which is generally based on either the veteran's disability and wartime service (pension) or disability from service-connected injury or disease
(compensation), is generally not considered remuneration for employment.

However, the Social Security Act and the statutes governing benefit payment by the Department of Veterans Affairs do provide for processes by which
dependents may obtain financial support from veterans' benefits under certain circumstances. Below are two examples highlighting the laws or regulations
under which benefits paid by the Department of Veterans Affairs can be paid to dependents to fulfill child support obligations.

Example #1: The Social Security Act [42 U.S.C. 659(h)(1)(A)(ii)(V)] provides that if a veteran is eligible to receive military retired/retainer pay and has
waived a portion of his/her retired/retainer pay in order to receive disability compensation from VA, that portion of the VA benefit received in lieu of
retired/retainer pay is subject to garnishment.

Example #2: The Department of Veterans Affairs has issued regulations pursuant to 38 U.S.C. 5307 that provide for an apportionment of VA benefits between
the veteran and his/her dependents under certain circumstances. VA regulations at 38 CFR Section 3.450(a)(1)(ii) provide that, if the veteran is not residing
with his or her spouse, or if the veteran's children are not residing with the veteran and the veteran is not reasonably discharging his or her
responsibility for the spouse's or children's support, all or any part of the veteran's pension, compensation, or emergency officers'
retirement pay may be apportioned.

Additionally, where a hardship is shown to exist, 38 CFR Section 3.451 authorizes a special apportionment of a beneficiary's pension, compensation,
emergency officers' retirement pay, or dependency and indemnity compensation between the veteran and his or her dependents. The apportionment is based on
the facts in the individual case, and may not cause undue hardship to the other persons in interest. Factors which determine the basis for special
apportionment include the amount of veteran benefits payable, other resources and income of the veteran and those dependents in whose behalf apportionment is
claimed, and special needs of the veteran, the dependents, and those applying for apportionment. Ordinarily, the VA considers that an apportionment of more
than 50 percent of the veteran's benefits would constitute undue hardship on the veteran, while an apportionment of less than 20 percent would not provide
a reasonable amount for any apportionee.

GARNISHMENT: To arrange for garnishment, contact the VA Regional Office that provides the non custodial parent's benefits. VA provides
a toll free number to help in determining which regional office is appropriate (1-800-827-1000), or refer to 5 CFR Part 581 - (Appendix A). The VA office will
determine if the veteran has waived any portion of his/her retired/retainer pay in order to receive VA benefits. Send service of process for garnishment to the
regional office serving the veteran.

SPECIAL APPORTIONMENTS:

1. The IV-D agency (state child support enforcement office) should write the Department of Veterans Affairs using agency letterhead to
request an apportionment review. The letter should be signed by both the appropriate IV-D official and the custodial parent. The letter should be addressed to
the VA Regional Office servicing that veteran's benefits. Use the toll free number to determine which regional VA office is appropriate
(1-800-827-1000).

2. Complete and attach VA Form 21-4138 (copy attached) "Statement in Support of Claim." The normal VA procedure is to request
this after receiving an apportionment application, so time can be saved by doing this as part of the first step. This is where information regarding income and
net worth may be provided.

3. Attach a copy of the current support order, to assist VA in the development of the apportionment award.

With regard to Information Memorandum IM-98-03 contained in the previous post, everything that is discussed in that memorandum, except for the one paragraph
about waived military retired pay, is what I was discussing in the post prior to that. The only reason I bring this up is so some don't think it is about
something different. While the memo is informative, it could leave some confused after reading my post.

Just to be clear. If a Vet is receiving comp of $1000.00 per month including money for dependent children, say $100.00 per month and the Court orders support
of $200.00 per month, the only amount the VA will apportion is the $100.00 being paid for the dependents if the Vet chooses to ignore the court order.

Just to be clear. If a Vet is receiving comp of $1000.00 per month including money for dependent children, say $100.00 per month and the Court orders support
of $200.00 per month, the only amount the VA will apportion is the $100.00 being paid for the dependents if the Vet chooses to ignore the court order.

No, VA can and will apportion whatever amount it wants. Maybe Ididn't word my statement as clear as I could have. VA won't pay any attention to
the court order. Actually, whenever someone sent in a court order I would just forward it on to the legal office and let them respond to that. If an
apportionment was requested, then I just looked at the facts in the case and made a decision on that basis.

In most cases I limited the apportionment to the additional amount the vet was receiving, but not everyone did. For example, I always pitied the guy when an
apportionment request was being decided by one of the women in the office who was having trouble getting her ex to pay child support to her. Ouch.